Wednesday 22 August 2012 13.10 EDT
First published on Wednesday 22 August 2012 13.10 EDT

(updated below - Update II)

Earlier this week, British lawyer and legal correspondent for the New Statesman David Allen Green generated a fair amount of attention by announcing that he would use his objective legal expertise to bust what he called "legal myths about the Assange extradition." These myths, he said, are being irresponsibly spread by Assange defenders and "are like 'zombie facts' which stagger on even when shot down."

In addition to his other credentials, Green – like virtually the entire British press – is a long-time and deeply devoted Assange-basher, and his purported myth-busting was predictably regurgitated by those who reflexively grasp onto anything that reflects poorly on western establishmentarians' public enemy No1. It's really worth examining what Green argued to understand the behavior in which Assange detractors engage to advance this collective vendetta, and also to see how frequently blatant ideological agendas masquerade as high-minded, objective legal expertise.

But before getting to that, let us pause to reflect on a truly amazing and revealing fact, one that calls for formal study in several academic fields of discipline. Is it not remarkable that one of the very few individuals over the past decade to risk his welfare, liberty and even life to meaningfully challenge the secrecy regime on which the American national security state (and those of its obedient allies) depends just so happens to have become – long before he sought asylum from Ecuador – the most intensely and personally despised figure among the American and British media class and the British "liberal" intelligentsia?

In 2008 – two years before the release of the "collateral murder" video, the Iraq and Afghanistan war logs, and the diplomatic cables – the Pentagon prepared a secret report which proclaimed WikiLeaks to be an enemy of the state and plotted ways to destroy its credibility and reputation. But in a stroke of amazing luck, Pentagon operatives never needed to do any of that, because the establishment media in the US and Britain harbor at least as much intense personal loathing for the group's founder as the US government does, and eagerly took the lead in targeting him. Many people like to posit the US national security state and western media outlets as adversarial forces, but here – as is so often the case – they have so harmoniously joined in common cause.

Whatever else is true, establishment media outlets show unlimited personal animus toward the person who, as a panel of judges put it when they awarded him the the 2011 Martha Gellhorn prize for journalism, "has given the public more scoops than most journalists can imagine." Similarly, when the Australian version of the Pulitzers – the Walkley Foundation – awarded its highest distinction (for "Most Outstanding Contribution to Journalism") to WikiLeaks in 2011, it cited the group's "courageous and controversial commitment to the finest traditions of journalism: justice through transparency," and observed: "So many eagerly took advantage of the secret cables to create more scoops in a year than most journalists could imagine in a lifetime."

When it comes to the American media, I've long noted this revealing paradox. The person who (along with whomever is the heroic leaker) enabled "more scoops in a year than most journalists could imagine in a lifetime" – and who was quickly branded an enemy by the Pentagon and a terrorist by high U.S. officials – is the most hated figure among establishment journalists, even though they are ostensibly devoted to precisely these values of transparency and exposing serious government wrongdoing. (This transparency was imposed not only on the US and its allies, but also some of the most oppressive regimes in the Arab world).

But the contempt is far more intense, and bizarrely personal, from the British press, much of which behaves with staggering levels of mutually-reinforcing vindictiveness and groupthink when it's time to scorn an outsider like Assange. On Tuesday, Guardian columnist Seumas Milne wrote a superb analysis of British media coverage of Assange, and observed that "the virulence of British media hostility towards the WikiLeaks founder is now unrelenting." Milne noted that to the British press, Assange "is nothing but a 'monstrous narcissist', a bail-jumping 'sex pest' and an exhibitionist maniac" – venom spewed at someone "who has yet to be charged, let alone convicted, of anything."

Indeed, the personalized nature of this contempt from self-styled sober journalists often borders on the creepy (when it's not wildly transgressing that border). Former New York Times' executive editor Bill Keller infamously quoted an email from a Times reporter claiming that Assange wore "filthy white socks that collapsed around his ankles" and "smelled as if he hadn't bathed in days." On the very same day WikiLeaks released over 400,000 classified documents showing genuinely horrific facts about massive civilian deaths in the Iraq war and US complicity in torture by Iraqi forces, the New York Times front-paged an article purporting to diagnose Assange with a variety of psychological afflictions and concealed, malicious motives, based on its own pop-psychology observations and those of Assange's enemies ("erratic and imperious behavior", "a nearly delusional grandeur", "he is not in his right mind", "pursuing a vendetta against the United States").

A columnist for the Independent, Joan Smith, recently watched Assange's interview of Ecuadorean president Rafeal Correa and offered up this wisdom: "He's put on weight, his face is puffy and he didn't bother to shave before his interview with Correa." And perhaps most psychologically twisted of all: a team of New York Times reporters and editors last week, in its lead article about Ecuador's decision to grant asylum, decided it would be appropriate to include a quote from one of Assange's most dedicated enemies claiming that when the WikiLeaks founder was a visitor in his apartment, he "refused to flush the toilet during his entire stay" (faced with a barrage of mockery and disgust over their reporting on Assange's alleged toilet habits, the NYT sheepishly deleted that passage without comment).

It is difficult to think of anyone this side of Saddam Hussein who triggers this level of personalized, deeply ingrained hatred from establishment journalists. Few who spew this vitriol would dare speak with the type of personalized scorn toward, say, George Bush or Tony Blair – who actually launched an aggressive war that resulted in the deaths of at least 100,000 innocent people and kidnapped people from around the globe with no due process and sent them to be tortured. The reaction Assange inspires among establishment media figures is really sui generis.

It is vital to note, as was just demonstrated, that this media contempt long pre-dates, and exists wholly independent of, the controversy surrounding the sex assault allegations in Sweden, and certainly long pre-dates his seeking of asylum from Ecuador. Indeed, given that he has not been convicted of anything, to assume Assange's guilt would be reprehensible – every bit as reprehensible as concluding that the allegations are a CIA ruse or that the complainants' allegations should be dismissed as frivolous or inherently untrustworthy.

It would be genuinely nice to think that the same British government that refused to extradite the mass rapist Augusto Pinochet has suddenly developed a devoted passion for ensuring that alleged sex assault offenders are brought to justice – just as it would be nice to believe that the sudden interest in denouncing Ecuador's press freedom record was driven by some newly discovered and authentic concern in the west for civil liberties protections in South America. But as Milne put it last night with great understatement: "such posturing looks increasingly specious." As he rhetorically asked:

"Can anyone seriously believe the dispute would have gone global, or that the British government would have made its asinine threat to suspend the Ecuadorean embassy's diplomatic status and enter it by force, or that scores of police would have surrounded the building, swarming up and down the fire escape and guarding every window, if it was all about one man wanted for questioning over sex crime allegations in Stockholm?"

Like those who suddenly discover the imperatives of feminism when it comes time to justify the war in Afghanistan, or those who become overnight advocates of gay rights when it comes time to demonize the regime in Tehran, or those who took a very recent interest in Ecuadorean press freedoms, these sex assault allegations -- as serious and deserving of legal resolution as they are -- are being cynically exploited as a political weapon by many who have long despised Assange for reasons entirely independent of this case.

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There are several obvious reasons why Assange provokes such unhinged media contempt. The most obvious among them is competition: the resentment generated by watching someone outside their profession generate more critical scoops in a year than all other media outlets combined (see this brilliant 2008 post, in the context of the Clintons, about how professional and ego-based competition produces personal hatred like nothing else can).

Other causes are more subtle though substantive. Many journalists (and liberals) like to wear the costume of outsider-insurgent, but are, at their core, devoted institutionalists, faithful believers in the goodness of their society's power centers, and thus resent those (like Assange) who actually and deliberately place themselves outside of it. By putting his own liberty and security at risk to oppose the world's most powerful factions, Assange has clearly demonstrated what happens to real adversarial dissidents and insurgents – they're persecuted, demonized, and threatened, not befriended by and invited to parties within the halls of imperial power – and he thus causes many journalists to stand revealed as posers, servants to power, and courtiers.

Then there's the ideological cause. As one long-time British journalist told me this week when discussing the vitriol of the British press toward Assange: "Nothing delights British former lefties more than an opportunity to defend power while pretending it is a brave stance in defence of a left liberal principle." That's the warped mindset that led to so many of these self-styled liberal journalists to support the attack on Iraq and other acts of Western aggression in the name of liberal values. And it's why nothing triggers their rage like fundamental critiques of, and especially meaningful opposition to, the institutions of power to which they are unfailingly loyal.

* * * * *

With that context established, let us return to David Allen Green. The attacks on those who have defended Assange's extradition and asylum arguments has depended on the disgusting slander that such advocates are indifferent to the allegations of sexual assault made against him or, worse, are "rape apologists."

The reality is exactly the opposite. I have spoken to countless Assange defenders over the last couple of years and not a single one – literally not one – is dismissive of the need for those allegations in Sweden to be taken seriously and to be legally and fairly resolved. Typifying this view is Milne's column last night, which in the midst of scorning the attacks on Assange, embraced "the seriousness of the rape allegations made against Assange, for which he should clearly answer and, if charges are brought, stand trial."

That is the view of every Assange defender with a platform that I know of, including me (one can certainly find anonymous internet commenters, or the occasional named one, making actual, horrific rape apologist claims, but one can find stray advocates saying anything; imputing those views to Assange defenders generally would be like claiming that all Assange critics want to see him illegally shot in the head or encaged for life because some prominent American and other commentators have called for this).

Not only Assange defenders, but also his own lawyers and the Ecuadorean government, have worked relentlessly to ensure that he faces those allegations in Sweden. They have merely sought to do so in a way that protects him from extradition to the US to face espionage charges for his journalism – a threat that could send him to prison for life (likely in a torturous super-max facility), and a threat only the wilfuly blind could deny is serious and real.

In their New York Times op-ed this week, Michael Moore and Oliver Stone correctly argue that it is "the British and Swedish governments that stand in the way of [the sex assault] investigation, not Mr Assange." That's because, they note, Assange has repeatedly offered to be questioned by Swedish authorities in London, or to travel today to Sweden to face those allegations if he could be assured that his doing so would not result in his extradition to the US to face espionage charges.

Time and again, "Correa said Ecuador never intended to stop Assange from facing justice in Sweden. 'What we've asked for is guarantees that he won't be extradited to a third country,' he said." Both Britain and Sweden have steadfastly refused even to discuss any agreement that could safeguard both the rights of the complainants and Assange's rights not to be imprisoned for basic journalism.

These facts – and they are facts – pose a lethal threat to the key false narrative that Assange and his defenders are motivated by a desire to evade his facing the sex assault allegations in Sweden. So these facts need to be impugned, and that's where David Allen Green and his "myth-busting" legal expertise comes into play.

One myth Green purports to debunk is the notion that "the Swedes should interview Assange in London." This cannot be, Green argues, because "Assange is not wanted merely for questioning. He is wanted for arrest." He also echoes numerous other Assange critics by arguing that the "he-has-not-yet-been-charged" claim is a mere technical irrelevancy: the only reason this is true, he says, is because he must be in Sweden for that to happen.

But back in early 2011, Assange critics were telling a much different story. Back then, they were arguing that Assange was wildly overstating the danger he faced from extradition to Sweden because the investigation there was at such a preliminary stage and he was merely wanted for questioning. Indeed, here's what the very same David Allen Green wrote on 28 February 2011 when explaining the status of the investigation to his readers [my emphasis]:

"This extradition order does not necessarily mean, of course, that he will be extradited, still less that he will be charged, tried, or convicted. Assange may win an appeal of the extradition order, or Sweden may decide either not to continue or to interview him while he remains in England. However, unless some such external event intervenes, Assange will be shortly extradited to Sweden to be questioned about an allegation of rape, two allegations of sexual molestation, and an allegation of unlawful coercion."

Back when it suited Green, he emphasized that Assange has not been charged with any crime, that there is far from any certainty that he would be, and that extradition to Sweden is merely for him "to be questioned" on these allegations: exactly the "myths" and "zombie facts" which he now purports to bust. Moreover, Swedish law professor Marten Schultz, who strongly supports Assange's extradition to Sweden, has said the same [my emphasis]:

"The UK supreme court's decision means only that Assange will be transferred to Sweden for interrogation. It does not mean that he will be tried, or even charged. It is entirely possible that he will be transferred to Sweden, questioned, and released if the Swedish authorities find that there are insufficient grounds for prosecution. It is impossible – as it should be – to predict how the case will unfold."

Clearly, as Green himself used to acknowledge, Assange at this point is wanted for questioning in this case, and has not been charged. Once he's questioned, he might be charged, or the case might be dropped. That is what has made the Swedes' steadfast refusal to question him in England so mystifying, of such concern to Assange, and is the real reason that the investigation has thus far been obstructed. Indeed, Swedish legal expert Ove Bring has made clear, in the context of discussing Assange, that "under Swedish law it is possible to interrogate people abroad," but that Sweden is refusing to do so simply for reasons of "prestige" (he added: "If he goes to Sweden, is interrogated, then I expect the case would be dropped, as the evidence is not enough to charge him with a crime").

Then there's the very strange argument Green makes about why extradition to the US would be more easily accomplished if he's in Britain rather than Sweden. I've previously set out the reasons and supporting evidence showing the reverse is true and won't repeat those here, but let's look at what Green says to support his claim:

One can add that there is no evidence whatsoever that the United Kingdom would not swiftly comply with any extradition request from the United States; quite the reverse. Ask Gary McKinnon, or Richard O'Dwyer, or the NatWest Three.

It is true, as Green notes, that the Swedish government cannot provide an iron-clad "guarantee" that Assange would not be extradited to the US. That's because it is Swedish courts, and not the government, that make the ultimate decision on extradition. But both the British and Swedish governments play an important role in any extradition proceeding: they take influential positions on whether extradition is legally warranted. Under Britain's extradition treaty, it must consent to the subsequent extradition of any individual it extradites (meaning its consent would be needed for Sweden to send Assange to the U.S.), while in Sweden, the government must formally opine on whether extradition should take place (some Swedes have made the case that the government's position would be dispositive).

At the very least, there is ample room for negotiation. Both the British and Swedish governments could – and should – take the position that to prosecute Assange under espionage statutes for acts of journalism would be political crimes that are not subject to their extradition treaties with the U.S. or are otherwise not cognizable extradition offenses. Rather than explore any of those possible grounds for agreement, both governments have simply refused to negotiate either with Assange's lawyers or the Ecuadorean government over any proposals to safeguard his rights. That refusal on the part of those governments – and not any desire to obstruct the investigation or evade facing those allegations – is what led the Ecuadoreans to conclude that asylum was necessary to protect Assange from political persecution.

The complainants in Sweden have the absolute right to have their serious allegations against Assange investigated and legally resolved. But Assange has the equally compelling right under international law and treaties to be free of political persecution: which is exactly what prosecuting him (and perhaps imprisoning him for life) in the US for WikiLeaks' disclosures would be.

It is vital that both sets of rights be safeguarded, not just one. The only just solution is one that protects both. Assange's lawyers and the Ecuadorians have repeatedly pursued arrangements to vindicate all substantial rights at stake so that he can travel to Sweden – today – to face those allegations while being protected against unjust extradition to the US. It is the refusal of the British and Swedish authorities even to consider any such proposals that have brought this situation to the unfortunate standstill it is in.

It is incredibly telling that media attacks on Assange do not even pay lip service to, let alone evince any actual interest in, the profound threats to press freedom that would come if he were extradited to and tried in the United States. In lieu of being informed about any of this, readers and viewers are bombarded with disturbing, and often quite disturbed, rants driven by unrestrained personal contempt. That contempt not only drowns out every important value at stake in this case, but also any regard for the basic facts.

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UPDATE: Numerous people objected that I too readily conceded the point that Swedish courts, rather than the Swedish government, are the ultimate decision-makers on extradition requests, and the Swedish government therefore cannot provide Assange with a guarantee that he will not be extradited to the U.S. This article by a lawyer -- who fervently believes that Assange should be extradited to Sweden -- makes the case very compellingly that the Swedish government most certainly can provide such a guarantee if it chose to [my emphasis]:

Extradition procedures are typically of a mixed nature, where courts and governments share the final decision – it is not unknown for governments to reject an extradition request in spite of court verdict allowing it. . . .

Article 12 [of Sweden's extradition law] adds that the government may put conditions on its decision to accept an extradition request. The deciding body is thus the government, with an input by the Prosecutor general and a veto right given to the Supreme Court in case where the requested person doesn't accept to be extradited.

The article goes on to cite the Swedish extradition law to outline two possible outcomes where the target of an extradition request challenges its validity: (1) the Swedish supreme court rules that extradition is not legally permissible, in which case the Swedish government is not free to extradite; (2) the Swedish supreme court rules that extradition is legally permissible, in which case the Swedish government is free to decide that it will not extradite for policy or other prudential reasons. In other words, the Swedish judiciary has the right to block an extradition request on legal grounds, but it lacks the power to compel extradition; if the courts approve of the legal basis, the Swedish government still retains the authority to decide if extradition should take place.

As indicated, even if it were true that Swedish government was an unable to offer Assange a so-called "iron-clad guarantee" against extradition, there is still grounds to negotiate in order to have him travel to Sweden to face these allegations; given that the Swedish government clearly has, at the very least, a significant role to play in the process, its advanced position against Assange's extradition to the U.S. on the basis of WikiLeaks' journalistic disclosures would be significant. But there is at least a strong argument to make, if not an irrefutable one, that the Swedish government is able to offer precisely the guarantee that both Assange and Ecuadorean authorities have sought in order to enable him immediately to travel to Sweden to face the sex assault allegations against him. Independently, the British government is also clearly in a position to contribute to those assurances, given the need for its consent if extradition to the U.S. from Sweden is to take place.

If one wants to find a culprit for why these sex assault allegations are not being resolved the way they should be, the refusal of these two governments even to negotiate to secure Assange's clear rights against unjust extradition is the place to begin.

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UPDATE II: For even more compelling evidence that the Swedish government is the final decision-maker in extradition matters and does indeed have the power to guarantee Assange that he would not be extradited to the U.S. based on his journalism, see the citations in Point 3 of this excellent reply to Green.